Promoting the Full Inclusion of Women in the Church and Society

Mass Torture in America

An address given at the National Lawyers Guild
70th Anniversary Convention in Washington, D.C.
on October 31, 2007.

Some prisoners howl in constant agony.

On Halloween, I have a true ghost story to tell: the story of 50,000 ghosts in America, the largely invisible inmates of our solitary-confinement “supermax” prisons.
What is their life like? It is torture. It is isolation, sometimes for years — 23 hours a day in a tiny cell, with the other hour in a small cage outdoors. It’s sensory deprivation — usually, no radio or TV and few books. If you are disobedient, you may suffer beatings and Mace in the face when Swat teams “extract” you to put you in a restraint chair. Feces, urine, and blood coat the cellblock walls, floors, and ceilings — splattered there by the many insane and enraged men. Guards “checking” on prisoners deprive them of sleep, and so does the usual pandemonium; like ghosts, some prisoners howl in constant agony. Inadequate food is shoved through an unsanitary slot in the door. The prisoners get poor medical and dental care; in Maine, many Supermax inmates are not allowed toothbrushes. Mental health care is a cruel joke. Medical professionals are complicit in the torture; they try to keep prisoners capable of enduring more suffering. Guards sexually humiliate prisoners and taunt suicidal ones. Rare “no contact” visits with family take place through a window and a tinny speaker. Prisoners typically are allowed one telephone call a week. There is arbitrary censorship of mail and little or no access to education and other possibilities for rehabilitation.

For two years I’ve written about the treatment of men in the Supermax unit of the Maine State Prison. “Supermax” is the informal name of a super-maximum-security “special management unit” or “control unit.” They exist in most states and the federal prison system. Most are separate prisons; they were built beginning in the 1980s to house, in principle, disruptive prisoners.

Supermax confinement is repulsive, immoral mass torture that is historically unprecedented. I would also suggest it is illegal under international law. If the American people can be brought to see these things, it will be possible to get rid of supermaxes. In the process, we will begin to calm our complex, turbulent prison madness. Instead of indulging ourselves in the fury of punishment — with the supermax as the ultimate circle of the hell we have created for prisoners — we can try rationality and rehabilitation. Before we can move to this better place, though, the public needs considerable education. The news media can provide it, but reporters need legal action to report on, and legal action could have some success in itself.

There are so many other crimes committed against prisoners that the few reform groups tend to protest all the crimes at once. Politically, though, supermaxes are a vulnerable point. As unsympathetic as many citizens feel toward prisoners, they don’t want to be seen as torturers. And Abu Ghraib and Guantánamo have sensitized Americans to the word torture.

And Americans would be surprised to learn that supermaxes are not just for “the worst of the worst,” as prison wardens like to say. They contain mostly nonviolent prisoners. Supermaxes are often used as punishment for prison infractions — and, frequently, punishment when a prison administrator simply doesn’t like an inmate. Especially, they contain mentally ill people who find it impossible to not talk back.

Supermaxes are also used for political purposes. In the notorious ADX, the federal supermax in Colorado, and in state supermaxes, many prisoners are spending lengthy sentences in solitary confinement not because they can’t function in a prison general population but because of their politics. At ADX, Theodore Kaczynski, the Unabomber; Jamil Abdullah Al-Amin, formerly H. Rap Brown, the black militant; and al-Qaida operative Zacarias Moussaoui are being punished extrajudicially with solitary in addition to their life sentences. These people, therefore, are political prisoners. In Maine, I found the most politically active prisoners in the Supermax.

The United States is a party to the UN Convention Against Torture. Under that treaty, torture is official treatment that causes “severe pain or suffering, whether physical or mental,” when it is inflicted as punishment or for coercion. Dictionary definitions are similar, except torture obviously can be inflicted by other than officials. Prisoners call supermax conditions “no-touch torture.”

In any case, supermaxes fit all the definitions.

The mental destruction of Jose Padilla, the Islamist American citizen whom the US has held in solitary confinement for years, is well known. Psychiatrist Stuart Grassian, formerly at Harvard, has researched the mental damage solitary confinement inflicts upon healthy people. But what of the many mentally ill prisoners shoved into the supermaxes? In them, Professor Grassian told Time magazine this year, “We’re taking criminals who are already unstable and driving them crazy.”

How many mentally ill people are in supermaxes? I am still researching this question, but the number is extremely high. A US Justice Department study in 2006 says that upwards of two-thirds of all prisoners report mental-health problems. Why? “Over the past 40 years, the United States dismantled a colossal mental health complex and rebuilt — bed by bed — an enormous prison.” That is from criminologist Bernard Harcourt in a January 2007 New York Times op-ed piece entitled “The Mentally Ill, Behind Bars.”

Although many mentally ill people may be in prison for small-time burglary or drug trafficking, their illness often results in their being put in the supermax. There, as they get worse, they get sentenced again and again for assault on guards — perhaps to a life sentence on the installment plan. Finally, their behavior may become suicidal. In the Maine State Prison, all the suicides in recent years have been in the Supermax.
It is mass torture.

How many human beings are Americans treating this way? I am still researching this number, too. An Urban Institute survey in 2004 found 44 states had supermaxes housing 25,000 inmates. In her recent book, Total Confinement: Madness and Reason in the Maximum Security Prison, Lorna Rhodes cites a source that claims in the year 2000 there were 42,000 American prisoners in this kind of confinement. A group researching the question believes the true number is closer to 100,000. I use 50,000 as a realistic possibility. Alongside this quantity, the several hundred prisoners at Guantánamo seem few.

(But supermax prisoners only constitute between one and two percent of our more than two million people in prisons and jails, the highest number in the world. The United States, with five percent of the world’s population, has 25 percent of its prisoners, a result of incarcerating people at five times the rate we did 30 years ago.

How many people have been tortured in supermaxes? Over 25 years, hundreds of thousands, at the least.

It is unique mass torture.
How distinctive is the US supermax system? I have consulted with well-informed people abroad, and they believe the American system is unique. A quick look at Wikipedia reveals there are supermaxes in a number of countries. But they are rather special affairs
Large supermax systems are unlikely to exist abroad not only because of the exceptional American harshness toward prisoners, but also because of the expense. America is rich enough to afford them. Each prisoner in the United States costs taxpayers, on average, $25,000 a year. Supermax prisoners cost roughly twice that. Because of the expense, the supermax system is probably unique in the history of imprisonment. In the gulags of the worst totalitarian systems, it was too expensive to keep thousands of prisoners in solitary confinement.

It is illegal, unique mass torture.

I am not a lawyer, but, as I understand it, American law speaks feebly about solitary confinement per se. In 1890, the US Supreme Court sharply criticized it. In 1940, the court referred to solitary confinement as a form of torture. But in recent decades the high court and many other courts have not been on the attack against solitary confinement — to put it mildly.

Consequently, there has been little success by reform-minded groups in getting sweeping court declarations that supermax conditions violate the Eighth Amendment prohibition against cruel and unusual punishment. But the American Civil Liberties

Union and other groups have had some success in attempting to make supermaxes less harsh with their suits against prison systems in California, New York, Wisconsin, Ohio, New Mexico, Connecticut, Mississippi, Texas and elsewhere. David Fathi of the ALCU believes there is an emerging consensus in the courts that mentally ill people shouldn’t suffer typical supermax conditions.

But to look at international law — speaking again just as a journalist — when I read the US Senate’s qualifications to the UN Convention Against Torture, it appeared to me that prolonged solitary confinement was banned by the treaty. Solitary disrupts “profoundly the sense of the personality,” as the Senate describes one mark of mental torture. And the Senate recognizes mental torture to be a companion of physical suffering.

Unfortunately, the Senate limited the treaty’s enforcement by making it “non-self-executing,” which means it can’t stand alone as law but, in court cases, must be cited with another law, such as the constitutional prohibition of cruel and unusual punishment. As I understand it, such citations have been few. But why not begin?

Possible solutions.

Why not begin to end this mass torture? The ACLU’s legal battles for better supermax conditions must be applauded, but they only make a horrible situation somewhat less horrible, the perennial contradiction of many reforms. And will the reforms last? In my research in Maine, I discovered three federal-court consent decrees dating from the early-1970s’ activist era. They gave prisoners considerable rights that had long been forgotten by inmates, activists, lawyers, and judges, though the court orders are still binding on the state Corrections Department. The department will not tell me whether it knew about them.

More than they need to be reformed, supermaxes need to be torn down. Thirty years ago they didn’t exist; they are unneeded, just as the Soviet gulag and Nazi concentration camps were unneeded. Should the concentration camps have been reformed?

So how to get rid of the supermaxes? As a former political organizer, I hold to the convergence theory of social action: Attacks on many fronts should converge with a clear, simple message on a specific, practical outcome.

One front is the legal battle. Citing international law in this battle is another front. Even if the international prohibitions against torture can’t be enforced very easily in this country, the citing of this law could heighten public consciousness – and public shame for the torture of prisoners in our supermax system?

The same result could occur if groups reported American prison cruelty to the UN Committee Against Torture, which enforces the Convention Against Torture. Some organizations are already engaged in this effort.

Here’s another possible front in the battle: Why not encourage the use of other countries’ law against us? Some countries have “universal jurisdiction.” In Europe, former Secretary of Defense Donald Rumsfeld is being pursued in court for encouraging the torture of prisoners in Abu Ghraib and Guantánamo. Why shouldn’t jurists in other nations pursue the United States?

Perhaps there needs to be a national organization to undertake legal battles specifically against supermaxes. It also could lobby for legislation to shut them down and create alternatives. But, given that we live in the media age, and given where Americans are coming from, every legislative and legal effort needs to be accompanied with a news-media campaign that insists Americans must end this immoral — and counterproductive and expensive — system of mass torture. This campaign will not be easy. Especially on this subject, much needs to be done to wrench the news media from their traditional absorption with repeating what officials say. I began my coverage of the abuse in the Maine Supermax when a political activist was unable to interest the state’s daily newspapers in the subject, so he went to me.

Even when a reporter is interested, coverage is difficult. The Supermax ghosts are invisible because they are kept from view. Reporters are not allowed inside the Maine Supermax, and after my stories began appearing the state Corrections Department banned me from the prison altogether.

Those who struggle for change must be realistic. The public now is indifferent or hostile toward prisoners. There has always been indifference and hostility toward them, of course — and there always will be, in some quarters — but a special, recent harshness has poisoned the country. The historical development of supermaxes cannot be untangled from the development of the American prison madness as a whole — just as changes to, or the eradication of, the supermax system will implicate many prison reforms.

I have only begun to try to understand why the imprisonment mania has raged in the US, but I remember when it began, soon after Ronald Reagan was elected in 1980, when the country veered sharply to the right under skillful leadership.

New leadership on the federal level could take us in a different direction. In the 1999 Report of the United States to the UN Committee Against Torture, the US notes that American laws enable federal authorities to pursue correctional officials, in criminal or civil cases, for prisoner abuse.

But, realistically, a plea for new leadership is a plea for a chain reaction. First, those who care most about these issues should reach out to reporters and editors — and to civil libertarians, other social activists, and legal-group leaders. These people could morally, legally, and economically educate a segment of the public. Then this segment could educate the politicians, who then could educate the larger public. Politicians are followers before they are leaders.

Right now, even liberals ignore or don’t want to touch this issue. I’m amazed at how they are far more concerned about the few hundred prisoners in Guantánamo than about the 50,000 prisoners who suffer far worse in the supermaxes next door.

As for conservatives, they seem hard to crack even with the argument of financial self-interest. The billions of tax money poured into prisons buy little: The prisoner recidivism rate nationally is 70 percent. It’ll take a lot of logic and facts to penetrate the congealed harshness of the conservatives.

Even an interest in protecting one’s family seems hard to stimulate. In July, a robber released from the Maine Supermax killed three men in a store holdup.

“I reached out and told them I need medication. I reached out and told them I shouldn’t be out in society. I told numerous cops, numerous guards,” he said in publicly admitting the crime.

Our Corrections Department and the governor, a Democrat, said the responsibility for this tragedy rested solely with the criminal. I saw no public outcry about the failure of the corrections system.

But I shouldn’t end on a pessimistic note. A grass-roots prison-reform group is being formed in Maine. A group of prominent lawyers is beginning to look at reform. Suits have been filed. And a few others in the state’s news media are beginning to write stories that are more than Corrections Department news releases. Who knows? At least in this corner of the country, an education may be beginning.

A Maine supermax swat team Maces a naked prisoner as they strap him into a restraint chair. A Maine Department of Corrections video records the prisoner screaming as an officer says “Mace him.” The video is here.

The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman’s noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless. – U.S. Supreme Court
Chambers v. Florida, 309 U.S. 227 1940

It’s possible that the very steps we’re taking to keep society safe and such prisoners in check are achieving just the opposite . – TIME Magazine, Jan. 26, 2007

Tapley has written numerous articles based on his study of prisons and supermaxes. A list of his articles is on the web here.
Tapley’s email address is: ltapley@roadrunner.com

After Deane Brown published many reports on conditions in Maine’s supermax he was sent 500 miles away to a supermax in Maryland in November of 2006. He claims he was sent there in retaliation for his outspoken criticism — in Phoenix articles and on a Rockland radio station — of Supermax conditions. Prison officials say they transferred him for “security” reasons.

A former supermax guard wrote about Deane Brown: “I just wanted to comment on the many articles “dino” has entered on this site. I worked at MSP for 10 months 16 days, in supermax. As a result i got to meet and I feel, know Deano. I’m totally distressed to hear of his move to the Maryland facility, and wish him well. I found him to be a delightful human being, very interesting, intelligent person. As I said, I’m quite saddened by his present predicament. He doesn’t belong there, and i sincerely hope he’s brought back to Maine.”

The first page of a letter from Deane Brown to WRFR, www.penbay.org, and the Portland Phoenix.
TYPICAL FACILITIES IN A SUPERMAX PRISON SOLITARY CELL

1. Typical cell sized 7ft x 12ft (3.5x2m) with small slit window opening on a prison wall
2. Shower works on timer
3. Small black and white TV showing educational programmes (some prisoners only)
4. Heavy duty steel door or grate
5. Writing desk
6. Toilet which shuts off if blocked
7. Sink
The French team de Beaumont and de Tocqueville (1833) had sung many praises of American correctional practices. They drew the line, however, when it came to “the evil effect of total solitude” they had been forced to observe. It also became clear in short order that supermax confinement did not deter reoffending. de Beaumont and de Tocqueville noted that “this system, fatal to the health of the criminals, was likewise inefficient in producing their reform.”

From “The Future of Supermax Confinement” by Hans Toch
Social psychologist and SUNY Distinguished Professor of Criminal Justice
Honored with the “Prix DeGreff” award for distinction in clinical criminology
at the World Congress of Criminology. The Prison Journal 2001; 81; 376